Kumar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Kumar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1180 (4 May 2021)
Division:GENERAL DIVISION
File Number: 2021/0953
Re:Vikas Kumar
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member John Rau SC
Date:4 May 2021
Place:Adelaide

Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision dated 11 February 2021 and sends the matter back to the Respondent for reconsideration in accordance with the following direction:
1.The Respondent shall not refuse to grant the Bridging E (Class WE) visa to the Applicant pursuant to section 501(1) of the Migration Act 1958 (Cth)

.......................[Sgnd]..............................
Senior Member John Rau SC
CATCHWORDS
MIGRATION – refusal of application for Bridging E (Class WE) visa under section 501(1) - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – best interests of minor children – decision under review affirmed and a new decision is substituted in its place
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500, FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member John Rau
4 May 2021
INTRODUCTION

This matter relates to an application for review filed by Mr Vikas Kumar (“the Applicant”) on 18 February 2021. The decision the Applicant seeks to review is the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) dated 11 February 2021 to refuse the granting of his Bridging E (Class WE) visa (“visa”).
The Hearing was conducted on 19 April 2021, the Applicant was represented by Vanessa De Pretis of Migration Solutions and the Respondent represented by Tom Ellison of Australian Government Solicitor. The Applicant, Vanessa De Pretis, and Tom Ellison attended in person, as did the sole witness Michelle Davidson (“Davidson”), the partner of the Applicant. The Tribunal also received the evidence that is listed in the attached exhibit list, marked “Annexure A”.
BACKGROUND
The Applicant is an Indian citizen. He was born on 4 November 1989 and is 31 years of age.
The Applicant arrived in Australia on 17 June 2009 on a Vocational Education and Training Sector (Subclass 572) visa[1] and has been a resident in Australia since that time.
[1] Exhibit 3, G2 Attachment H, p 51.
Between June 2011 and July 2012, the Applicant was in a relationship with Davidson. After this relationship ended the Applicant remained on good terms with Davidson.
The Applicant subsequently entered into a relationship with Zoe Hall (“Hall”), marrying her on 23 September 2013. He applied for a partner visa at that time and was granted a Partner (Subclass 820) visa on 25 March 2014.
In March 2015 Hall travelled to the United Kingdom planning to stay there for six months and then return. In early 2016 Hall advised the Applicant that she did not wish to return to Australia or continue their relationship. The Applicant reports becoming depressed due to the relationship breakdown and began to drink alcohol to excess.
On 28 March 2016, the Applicant committed a violent and unprovoked assault on a victim who was unknown to him.
In August 2016, Hall withdrew her sponsorship for a Partner visa.
In late May 2017, the Applicant recommenced his relationship with Davidson. They decided to cohabitate on 4 August 2017. On 29 September 2017 the Applicant proposed to Davidson and a wedding date was set for 10 April 2018.
In September 2017, the Partner (Subclass 801) visa was refused. The Applicant sought review of that decision from the Tribunal.
On 11 October 2017, Davidson discovered she was pregnant with the Applicant’s daughter (“Child 1”).
On 9 November 2017, the Tribunal affirmed the refusal of the Applicant’s Partner visa.
On 8 December 2017, the Applicant’s divorce from Hall was finalised.
In December 2017, after the expiry of the Partner visa the Applicant reported to Immigration and was subsequently detained.
On 13 February 2018, the Applicant was granted a Criminal Justice Stay visa and released from immigration detention.
On 29 June 2018, Child 1 was born.
On 15 May 2019, Davidson discovered she was pregnant with the Applicant’s son (“Child 2”).
Also, on 15 May 2019, the Applicant was convicted of “recklessly causing serious harm to another (basic offence)”.
On 8 August 2019, the Applicant received a head sentence of 2 years and 10 months with 16 months non-parole period.
On 11 April 2020, “Child 2” was born.
On 2 December 2020, the Applicant made a request for Ministerial Intervention.
On 7 December 2020, the Applicant was released on parole. The Criminal Justice Stay visa was cancelled and the Applicant lodged an application for a Bridging E (Class WE) visa.
On 24 December 2020, the Respondent issued the Applicant with a Notice of Intention to Consider Refusal of the application for the visa under section 501(1) of the Migration Act 1958 (“the Act”).
On 21 January 2021, the Applicant made written submissions to the Respondent as to why the application for the visa should not be refused.[2]
[2] Exhibit 3, G2 Attachment P, p 110.
On 11 February 2021 a delegate of the Respondent refused the Application pursuant to s 501(1) of the Act on the grounds that he did not satisfy the character test.[3] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(b) of the Act.
[3] s 501(6)(a) Migration Act 1958.
The Applicant subsequently lodged an application for review in this Tribunal on 18 February 2021.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Exhibit 3, G1, p 1.
LEGISLATIVE FRAMEWORK
Section 501(1) of the Act provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 15 May 2019, the Applicant was sentenced to a term of imprisonment of 2 years and 10 months with a non-parole period of 16-months.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must therefore consider that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Should the discretion to Refuse the Applicant’s Visa be Exercised?
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[5]
[5] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[6]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[7]
[6] [2018] FCA 594.
[7] Ibid, [23].
HISTORY OF OFFENDING
On 28 March 2016, having spent the previous evening and early morning drinking with friends, the Applicant committed a violent and unprovoked assault on a victim who was unknown to him. The victim sustained severe and life-threatening injuries and continues to suffer lingering effects of the assault.
On 15 May 2019, the Applicant was convicted at trial by jury in the District Court of South Australia of “recklessly causing serious harm to another (basic offence)”.
The trial judge noted that the Applicant’s “offending is clearly serious” and his “actions in striking the victim were gratuitous and unjustified”. The effects of his actions “had a devastating impact upon… [the victim] and his family”.[8]
[8] Exhibit 3, G2 Attachment B, p 29.
The trial judge noted the following in her sentencing remarks:
“Vikas Kumar, you were found guilty after trial by jury of the offence of the maximum penalty for this offence is imprisonment for 15 years.
As to the circumstances of your offending, in the early hours of Monday, 28 March 2016 you were at The Grand Bar Hotel at Glenelg, socialising with some of the security guards and patrons in the main entrance foyer.
You were present when the victim in this matter was ejected by a security guard from the hotel. After being ejected, the victim returned to the front door and kicked the lower metal part of that door. You were standing on the other side of the door at the time. You pushed open the door and forcefully struck a blow to the victim's head, causing him to fall backwards off the steps and onto the ground.
The incident was captured on closed-circuit television. You then re-entered the bar, continued socialising with others in the dance area, and left through another exit.
Your victim was rendered unconscious. He sustained a fractured skull and bleeding on the brain. The traumatic brain injury was of mild to moderate severity. The injury was described by a rehabilitation specialist surgeon during the trial as life threatening.
As a result of your conduct, the victim was hospitalised for several days. He has experienced ongoing headaches, fatigue, difficulties concentrating and a partial loss of smell and taste.
You were arrested on 27 March 2016 and remanded in custody until 4 April 2016. You were then released on home detention bail until 8 June 2016. You were taken into detention under the Migration Act on 7 December 2017. Your bail was revoked on 22 February 2018, and you were released from detention on 27 February 2018.
You entered a new bail agreement on 1 March 2018. You were thus remanded in custody for a total of 13 days and on home detention bail for two months and four days, and in immigration detention for about three months.
I received a victim impact statement from Mr Adams, who spoke of the ongoing adverse impact of your offending upon him. He says his tolerance, patience and stress levels have deteriorated since this incident. His apprenticeship was delayed for six months whilst he recovered from his injuries, and he suffered financial loss. His emotional wellbeing has also been poorly affected in that he is more socially isolated and he continues to worry about his future and to live with the consequences of your actions.
I also received a victim impact statement from the mother of your victim, who speaks of the terror she experienced that night not knowing the prognosis for her son. She says she still worries about her son and has had sleepless nights. She says that your conduct has had a terrible impact on her whole family.
Consistent with the jury's verdict, I am satisfied that you were intoxicated that evening, that you struck the victim with an open hand rather than a closed fist, and your offending conduct occurred over a very short period of time. However, you fall to be sentenced on the basis that you were aware that striking the victim in this way carried with it a substantial risk that your act could result in serious harm to him and, being so aware, you engaged in that conduct, notwithstanding that risk and without adequate justification.
Further, the closed-circuit television footage reveals the considerable force with which you struck the victim. The evidence at trial also disclosed that such was the force with which you struck the victim, he was rendered unconscious before he hit the ground. I have already detailed the terrible consequences your actions had upon him.
As to your personal circumstances, you are now 29 years old. You were 26 at the time you committed this offence. You were born and grew up in North-Western India. You are the eldest of three children. You have two younger sisters whom are both married and living in India with families of their own.
You completed your high school education in India and arrived in Australia in mid-2009 when you were 19 years old. Shortly after leaving India, your father committed suicide. Your mother struggled in the aftermath of his death. I am told that your uncle effectively took control of your father's business and your mother was left financially bereft. As her only son you became responsible for supporting her. I am told that you continue to send money to your mother every month so that she can pay her bills.
After arriving in Australia, you completed a Certificate Ill in Automotive Work and you have been a fully-qualified mechanic since 2012. You had also completed much of the Certificate Ill in Business Management when that study was interrupted by your initial incarceration for this offence.
You have had two significant relationships in Australia. Your relationship with your first wife broke down in August 2015. You then became involved with your current partner. You have officially registered that relationship. You had planned to marry in April 2018, however your wedding was called off after you were taken into immigration detention. Your partner gave birth to your daughter in June 2018.
Since arriving in Australia you have been in full-time employment. From 2010 to 2013 you worked full time as a security guard. In 2013 you obtained a second job in the same capacity. You continued to work in both jobs until your arrest in 2016. Upon your release on home detention bail you secured employment as a truck driver. Since October 2016 you have been employed on a permanent full-time basis by Collins Transport and you work between 65 and 75 hours per week.
I received numerous character references attesting to the high regard in which you are held. You also called good character evidence at trial. You have no prior convictions.”[9]
[9] Exhibit 3, G2 Attachment B, p 28.

The trial judge further considered the suitability of the Applicant to serve his sentence in home detention considering his previous good character and good prospects of rehabilitation, however noted that:
“In this matter, I am satisfied on the basis of Mr Johnston's report that there is a real prospect of you being deported from Australia should you receive a term of imprisonment of 12 months or more to serve in custody or suspended. I also accept that the prospect of deportation will make the term of imprisonment more burdensome for you and deprive you of the opportunity of settling permanently in Australia.
I am also satisfied on the evidence of your partner, Ms Davidson, that your removal from Australia would cause significant emotional and financial hardship to her and your very young child. Your partner and child would need to relocate to India, where they have no support or lies, to maintain a relationship with you, Further, your partner's mother is suffering from breast cancer.
I make clear. that in determining the appropriate sentence, including whether to make a home detention order, I have taken into account your real prospect of deportation should you receive a sentence of imprisonment for 12 months or more, other than that order to be served on home detention, along with the hardship of your deportation upon your dependants.
Your counsel ultimately submits that there is good reason to suspend the inevitable term of imprisonment or, in the alternative, in the circumstances of this case, it is appropriate to order any sentence of imprisonment be served on home detention. I received a home detention report which says that your proposed address is a suitable address for home detention conditions.
Turning to sentence, your offending is clearly serious. Your actions in striking the victim were gratuitous and unjustified. Notwithstanding that your offending conduct took place over a very short period of time, whilst you were intoxicated, your blow to the victim was delivered with considerable force when he was standing in a precarious position at the top of a set of steps. Further, your actions resulted in your victim sustaining a life-threatening brain injury which has had a devastating impact upon him and his family.
Principles of both general and personal deterrence and the paramountcy to be afforded to the safety and the protection of the community must be reflected in my sentence.
In all the circumstances, I impose a head sentence of three years imprisonment, which I reduce by 13 days for the time you have served in custody, and one month and 17 days for your time on home detention and in immigration detention, resulting in a head sentence of two years and 10 months.
As to the non-parole period, I have had regard to your lack of prior convictions, your previous good character, your good employment history and your good prospects of rehabilitation, along with the real risk of deportation and its hardship upon you and your family as set out earlier. I fix a non-parole period of 18 months, which I further reduce by two months to 16 months for the lime you have served in custody and on home detention and in immigration detention.
As to the question of suspension, there is much to be said in your favour. You are still a relatively young man with no prior convictions, a dependant family, a very young child and an excellent employment history. You have good prospects of rehabilitation. However, notwithstanding those personal circumstances, including the very real prospect of your deportation, in my view your offending is simply too serious to find there is good reason to suspend the sentence. The sentence of the court must deter other persons who are intoxicated from engaging in such dangerous acts of violence in public places. I am not satisfied that there is good reason to suspend the sentence.
As to the question of home detention, I am satisfied that you are a suitable person for release on home detention and that the proposed residence is suitable. However, notwithstanding all of your favourable personal circumstances, and the real prospect of your deportation and the consequent hardship which will befall you and your family, I do not consider it is appropriate to order you serve your sentence on home detention because of the seriousness of this offending and the need for the principles of general deterrence to prevail. I do not consider the sentencing objectives for a crime of this seriousness would be met by the making of such an order.
The head sentence of two years and 10 months and the non-parole period of 16 months will be served in custody and will commence today.”
The Tribunal viewed the CCTV footage of the Applicant’s offence.[10] The offence was clearly violent in nature, the Applicant having struck the victim with “considerable force when he was standing in a precarious position at the top of a set of steps”[11] causing him to fall backward down these steps. The victim lay motionless for the remainder of the footage.
[10] Exhibit 7.
[11] Exhibit 3, G2 Attachment B, p 29.
On 8 August 2019, the Applicant received a head sentence of 2 years and 10 months with a 16-month non-parole period to expire on 7 December 2020.
On 7 December 2020, the Applicant was released on parole which was not to expire before 7 June 2022.
When giving evidence, the Applicant noted he was experiencing a depression and was in a “dark place” and “not in a good mindset” at the time of his offending due to the marriage breakdown with Hall. He said that at the time he struck the victim he was “blind drunk”. The Applicant reports having no recollection of the actual assault due to his drunken state.
The Applicant said that he is “deeply remorseful” when questioned about his offence.
The Applicant has no other criminal convictions.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Having regard to the sentencing remarks of the trial judge, the nature of the offending, and the severe injuries sustained by the victim, the custodial penalty imposed of 2 years and 10 months for a first offender and the Judge’s refusal to suspend the sentence, the Applicant’s offending must be regarded as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
This consideration is not relevant in this case.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
This consideration is relevant in this case. The Applicant is a first-time offender, but was refused a suspended sentence or home detention, and was sentenced to a significant period of 2 years and 10 months incarceration with a 16-month non-parole period. This is an indication of very serious offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
This consideration is neutral.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
This consideration is neutral.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
This consideration is neutral.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This consideration is neutral.
I do not consider factors (b), (d), (e), (f), and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily in favour of refusal of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
8.1.2(2)(a) – Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by provision 8.1.2(1) in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The nature of any harm should the Applicant reoffend is potentially very serious.
8.1.2(2)(b) – Likelihood of engaging in further criminal or other serious conduct
There are several factors relevant to an assessment of the Applicant’s likelihood of engaging in further criminal conduct. These are as follows:
(a)the Applicant continues to be on parole until June 2022 and understands that any breach of his conditions of parole will result in his immediate return to prison;
(b)the Applicant has strong family reasons not to reoffend, these include:
(i)the need to provide financial support for his partner and children;
(ii)his desire to have an ongoing close relationship with his partner and children;
(c)the Applicant has a good network of supportive friends;
(d)the Applicant has undergone psychological therapy and has begun to practice meditation as a self-treatment;
(e)the Applicant has an employment opportunity available to him if released into the community;
(f)the Applicant has a stable home environment to return to;
(g)the Applicant was assessed by correctional services and the parole board as being at a low risk of reoffending;
(h)the trial judge noted that the Applicant has “good prospects of rehabilitation” and “as to the question of home detention… [was] satisfied that… [he] is a suitable person for release on home detention”. Her honour, however, did “not consider the sentencing objectives for a crime of this seriousness would be met by the making of” an order for the Applicant to serve the sentence in home detention due to the seriousness of the offence[12]; and
(i)the report of psychologist, Alan Fugler, dated 9 April 2021, indicates the Applicant “does not present as a risk to the Australian Community”.[13] Mr Fugler noted further with respect to the Applicant’s risk of reoffending as follows:
“Vikas Kumar instructs he accepts responsibility for the assault that led to he being convicted and imprisoned in 2019. He expressed remorse for having offended and has an understanding the negative impact his action had upon the victim and his family. He stated he has learned his lesson and is motivated to not reoffend.
The history presented by Mr Kumar is of an individual who has not had difficulties with impulse control or anger management. With the exception of the matter involving the victim he has not displayed aggressive or violent behaviour toward others and does not have a history of anti-social or criminal activity. The offence also occurred during a period in which Mr Kumar had been depressed and actively grieving the breakdown in his marriage, his low level of mental health at that time likely to have impacted on his decision making. Given the disciplined behaviour Mr Kumar displayed prior to 2016, and indeed since, it is likely the violence displayed during the morning of 28 March 2016, a slap with an open hand that had serious consequences, could be considered to be an aberration. His psychological functioning has since improved to stable and positive.
On the basis of the evidence provided and Mr Kumar’s reported personal history I am of the opinion he falls within the very low range with respect to the likelihood of he re-offending in an aggressive or violent manner and believe he does not present as a risk to the Australian community.”[14]
8.1.2(2)(c) – Risk of harm affected by duration of intended stay
[12] Ibid.
[13] Exhibit 5, Report of Psychologist Alan N E Fugler, p 37.
[14] Ibid, p 36-37.
The visa, if granted, would only enable the Applicant to remain in Australia for a short period of time, pending the determination of his request for Ministerial Intervention. The opportunity for the Applicant to reoffend is very limited by the nature of the Visa being sought. There are strong compassionate reasons, particularly regarding the care of minor children which will be discussed further under Primary Consideration 3, for granting the Applicant a short stay Visa.
On the basis of the evidence presented, I am of the view that the Applicant presents an extremely low risk of reoffending, particularly given the short probable duration of the Bridging Visa.
Conclusion: Primary Consideration 1
Having regard to all of the above, in particular the very serious nature of the consequences of any reoffending and the very low risk of reoffending, I am of the view that primary consideration number one weighs in favour of refusing the visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

The Tribunal did not hear any evidence applicable to this consideration and it is uncontested between the parties that the Applicant did not engage in family violence.
Conclusion: Primary Consideration 2
This consideration is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     Sub-paragraph (a) – the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     Sub-paragraph (b) – the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     Subparagraph (c) – the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     Sub-paragraph (d) – the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     Sub-paragraph (e) – whether there are other persons who already fulfil a parental role in relation to the child;
·     Sub-paragraph (f) – any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     Sub-paragraph (g) – evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     Sub-paragraph (h) – evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant children in this case are as follows:
(a)Child 1, the Applicant’s daughter, aged 2 years old;
(b)Child 2, the Applicant’s son, aged 1 year old;
(c)Child 3, Davidson’s eldest niece, aged 10 years old;
(d)Child 4, Davidson’s youngest niece, aged 5 years old; and
(e)Child 5, child receiving occasional respite care from Davidson and the Applicant, aged 12 years old.
Child 1
Child 1 is two years old. Before the Applicant was taken into custody, he was a very hands-on father. He fed, bathed, and played with her, took her out for ice cream and accompanied her to swimming classes, the playground, and story-time at the local library. Although the Applicant worked during the day, both the Applicant’s statement and his oral evidence, which the Tribunal accepts, confirm that when he returned home at the end of the day he would take over a significant portion of the child care to give Davidson a break. Child 1 has a distinct awareness that the Applicant is her father, and the Tribunal heard in oral evidence from Davidson that she often calls for him at night, regarding her as a “total daddy’s girl”.
After the Applicant was taken into custody on 8 August 2018, contact with Child 1 decreased significantly. When in custody, before the COVID-19 pandemic the Applicant was in regular contact with Child 1, often more than twice a day. Contact was a combination of in person visits made by Child 1 along with Child 2 and Davidson to the prison in which he resided, as well as facetime and telephone calls. Despite restrictions being imposed on in person visits due to the pandemic, the Applicant still spoke will Child 1 over facetime and telephone call every day.
Being only a young child of two years of age, Child 1 will require parental care for some time to come. The Applicant, having played a present and engaged parental role in the initial years of her life, will no doubt, on the evidence before the Tribunal, continue to do so for the remaining fifteen years until Child 1 turns eighteen. If released into the community, the Applicant will reside with Davidson, Child 1, and Child 2.
There is no evidence before the Tribunal that Child 1 has, or will be, affected by the prior or future conduct of the Applicant. The evidence of psychologist, Mr Fugler, which is accepted by the Tribunal, notes the Applicant as having a very minimal risk of reoffending and the Tribunal has not heard any evidence of violent conduct by the Applicant outside of the single offence that is the subject of this decision.
If the Applicant’s visa were to be refused and the Applicant leave Australia, the only viable form of communication would be via facetime and telephone call. Although the evidence is not clear, it is unlikely that Davidson, Child 1, and Child 2 would relocate to India with the Applicant, particularly at the present time.
Should the Applicant leave Australia, Davidson maintains a parental role in relation to Child 1. In the Applicant’s written evidence, however, he noted that both he and Davidson do not have employment prospects in India. Davidson expressed to the Tribunal the struggle she experiences financially, emotionally, and practically in being the sole carer for her two young children. If the Applicant returned to India, he would not be able to earn an income to meaningfully support his family in Australia and Davidson would find it difficult working whilst being the sole carer for their children. While Davidson does fulfil a parental role, the arrangement of a singular physically present parent here in Australia would not be in the best interests of Child 1.
It is therefore in the best interests of Child 1 that the Applicant remain in Australia and continue to provide an ongoing parental role to her.
Child 2
Although Child 2 is very young, he already has an awareness of the Applicant and looks forward to contact with him.
Child 2 was born on 11 April 2020, at which time the Applicant was incarcerated. The Applicant was not able to meet Child 2 until he was 3 months old, however, during this period he would Zoom call with Davidson, Child 1, and Child 2 and would speak to Child 2 so he got to know the Applicant’s voice.
Child 2 has the same interest as Child 1 for the Applicant to remain in Australia.
Child 3
Child 3 is the daughter of Davidson’s brother. She presently resides with her family in Mount Gambier although she was previously resident in Adelaide.
She has had ongoing contact with the Applicant and has been in regular contact via telephone or Skype, regarding him highly as a de facto family member.
It is her interest for the Applicant to remain in Australia.
Child 4
The interests of Child 4 are the same as Child 3. It is in the best interests of Child 4 that the Applicant remain in Australia.
Child 5
Child 5 is a 12-year-old girl. Davidson is a respite carer for her through “Time for Kids” and has been looking after her approximately one weekend per month since April 2015.[15]
[15] Exhibit 3, G2 Attachment X11, p 164.
Since the Applicant and Davidson recommenced their relationship in 2017, Child 5 has enjoyed activities with the Applicant such as going out together for fish and chips or ice-cream. The Applicant has a positive relationship with Child 5.
Child 5 comes from a troubled and turbulent background; it is in her interests to have stable adult figures to interact with and therefore it is in her interest that the Applicant remain in Australia.
Conclusion: Primary Consideration 3
The Tribunal is required to consider the interests of each child separately. The interests of the Applicant’s two children, Child 1 and 2, are the same interests and will be dealt with together. The interests of Davidson’s two nieces, Child 3 and 4, are the same and will be dealt with together. The interests of Child 5 will be considered separately.
The interests of Child 1 and Child 2 weigh very heavily against refusing the visa. The interests of Child 3 and Child 4 weighs against refusing the visa. The interests of Child 5 weight moderately against refusing the visa.
Primary Consideration 3 weighs heavily against refusing the visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[16]
[16] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Conclusion: Primary Consideration 4
In regard to this Primary Consideration 4, the serious nature of the Applicant’s offending weighs in favour of refusing the visa. This is the case regardless of the Applicant’s low risk of re-offending.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is an Indian citizen. He has a mother and two sisters and their families in India. There are no language or cultural impediments to him returning to India.
I give no weight to this consideration.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
Paragraph 9.4.1(1) of the Direction notes:
“Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.
In considering the above paragraph, refusal of the Applicant’s Visa would have significant adverse consequences for his immediate family members in Australia, particularly Davidson, Child 1, and Child 2.
Paragraph 9.4.1(2) of the Direction notes:
“(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”
In considering paragraph 9.4.1(2)(a) of the above, the Applicant has:
(a)been in Australia for nearly 11 years;
(b)studied motor mechanics;
(c)been employed as a security guard and more recently as a truck driver;
(d)has a partner and two young children in Australia;
(e)has a network of friends in Australia;
(f)has contributed to a mortgage on a property with his partner; and
(g)has done voluntary work and been involved in the sport of weightlifting.
In considering paragraph 9.4.1(2)(b) of the above, the Applicant has:
(a)significant positive ties in the Australian community.
This Other Consideration weighs against refusal of the visa.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: neutral;
(c)impact on victims: neutral; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia; weighs against refusal of the visa, and the impact on Australian business interests is neutral.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
Protection of the Australian Community:
(a)The Applicant’s offending is very serious. A repetition of this behaviour would also be very serious. I am, however, of the view that there is a very low likelihood of the Applicant reoffending, particularly during the limited period of time between the present and the determination of the Applicant’s request for Ministerial Intervention.
(b)This consideration nevertheless weighs against the Applicant.
Best Interests of Minor Children:
(a)The Applicant has a partner and two young children, Child 1 and Child 2. His children want, and would benefit from, a close ongoing relationship with him.
(b)The Applicant also has a relationship with Davidson’s nieces, Child 3 and Child 4, as well as Child 5.
(c)This consideration weighs heavily in favour of the Applicant.
Expectations of the Australian Community:
(a)This consideration weights in favour of refusing the visa.
Other Considerations:
(a)Links to the Australian Community is the only relevant Other Consideration and this weighs against refusal of the visa.
Application of the Direction, notwithstanding the very serious nature of the Applicant’s offending, noting in particular the interests of the minor children (particularly Child 1 and Child 2), the low risk of reoffending and the temporary nature of the Visa sought, therefore favours the Tribunal not exercising the discretion to refuse to grant the visa to the Applicant.

Consequently, I do not exercise the power conferred by section 501(1) of the Act to refuse to grant the visa to the Applicant.
DECISION
The Tribunal sets aside the reviewable decision of the delegate of the Respondent to refuse the granting to the Applicant the Bridging E (Class WE) visa, and in substitution directs the Respondent not refuse to grant the Applicant this visa.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for the decision herein of Senior Member John Rau SC.

.........................[Sgnd].................................
Associate
Dated: 4 May 2021

Date of hearing: 19 April 2021

Representative for the Applicant:

Vanessa De Pretis

Migration Solutions

Representative for the Respondent:
Tom Ellison

Australian Government Solicitor

Annexure A – List of Exhibits

Exhibit no.	Lodged By	Document
1	Applicant	1. Statement of Facts, Issues and Contentions 2. Applicant – Witness Statement 3. Davidson – Witness Statement
2	Respondent	Statement of Facts, Issues and Contentions
3	Respondent	G-Docs
4	Respondent	Supplementary G-Docs
5	Applicant	1. Psychological Report of Allen N E Fugler 2. Applicant – family photographs
6	Respondent	Direction 90
7	Respondent	USB containing CCTV footage of the Applicant’s offence

[2021] AATA 1180

4 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness